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Texas Law Invites a New Underground Railroad

September 9th, 2021 by dk

No matter how you feel about abortion or how strongly you feel it, you should be dismayed and distressed about Texas. Its new “Heartbeat Law” forbids any abortion after six weeks and explicitly removes government from its enforcement.

The law sets up a Rube Goldberg system of enforcement through the state’s civil courts. It rewards so-called bounty hunters with a minimum $10,000 prize for any conviction, but nothing to defendants, even if they prevail.

Its diabolical design reminded me of Bill Sizemore’s various anti-tax crusades that twisted Oregon’s systems in his favor. Describing some of his clever legislative contraptions will take up too much room here. Try searching his name and “double majority” or “property tax compression” to start.

Attorney General Merrick Garland, no stranger to underhanded tricks, has vowed to defend women and clinics in Texas with federal agents. But his tools are extremely limited. The FACE (Freedom of Access to Clinic Entrances) Act protects women entering clinics, but that’s about it. Once they leave the clinic, Texas law takes over.

It’s somewhat misleading to describe Senate Bill 8 as part of Texas law because law is defined as “the collection of rules imposed by authority.” But the authorities cynically removed themselves from this law’s imposition. Because its enforcement comes from random individuals through the civil courts, the federal courts cannot review its constitutionality.

In place of any sort of government enforcement, Texas lawmakers have declared that vigilantism is a suitable substitute. This is what everyone should find disturbing. Does it count as anarchy when government authorities knowingly tie their own hands?

I’m sure that pro-choice activists are drawing up plans already to flood Texas — and soon other copycat states like South Dakota and Florida — with activists willing to squire pregnant women to other states, where they can safely and legally end their pregnancies. Those activists will then return them to the Texas border with bus fare to get them home.

The woman whose pregnancy ended cannot the prosecuted, but anyone aiding or abetting her instantly becomes a target for civil suit. But the state civil court system cannot reach defendants outside Texas Those aiding the women would become fugitives, risking arrest if they returned to Texas. Most wouldn’t consider being barred from entering Texas as any great loss.

Texas could be inspiring a modern recreation of the Underground Railroad.

There’s already talk of applying SB8’s dastardly lack-of-logic to other changes that have failed as conventional laws. Californians have suggested this tack might be the best way to punish those who own or use guns without triggering (sorry) a challenge based on the Second Amendment. What anti-gun activists need is a well regulated militia of litigants!

Where else might government delegate its core responsibility, using bounty hunters for rogue enforcement? Sloppy recyclers? Unkempt lawns? Texas visitors? Settling for a field goal when the home team is behind by six with less than eight minutes to play?

It’s not technically “taking the law into your own hands” when lawmakers give it to you.


Don Kahle ( writes a column each Friday for The Register-Guard and archives past columns at

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